This Criminal Miscellaneous Case is filed by accused 1, 2, 4 and 5 in C.C.No.513/2011 pending before the Judicial First Class Magistrate Court-I, Changanacherry to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') 2. It is alleged in the petition that the petitioners were arrayed as accused 1,2,4 and 5 in Crime No.986/2011 of Changanacherry police station. The first respondent herein is the de facto complainant in the above crime. She married the third accused as per custom. Accused Nos. 1 and 2 are the mother and father and petitioners 3 and 4, who are accused Nos. 4 and 5, are the sisters of third accused. According to the complainant, the marriage had taken place on 7.1.2010. Prior to the marriage, she was working in a Software Institution at Bangalore and in connection with the marriage, the father of the de facto complainant entrusted Rs.20 lakhs with the first petitioner and 80 sovereigns of ornaments were purchased using this amount. According to the de facto complainant, except few ornaments, her other ornaments were taken by the first petitioner and the third accused had taken the entire money from the deposit in her name by using her ATM card. The third accused was harassing the de facto complainant demanding more dowry. She had undergone a surgery to remove a cyst in the ovary even prior to the marriage and after the marriage the accused persons ill treated her demanding more dowry and also on account of the surgery undergone, she will not conceive and she was made to do all the household works and to do the menial work and that was instigated accused Nos.1, 4 and 5. The father of the third accused namely the second petitioner, according to the de facto complainant, was compelling her to have a divorce since the demand for dowry has not been fulfilled by her parents. This was expressed by him even in the presence of her father and other relatives. In order to pressurize her to agree for divorce, they started ill treating her and thereby according to the de facto complainant, the accused have committed the offence punishable under Section 498 A read with Section 34 of the Indian Penal Code. On account of the ill treatment, she could not live in the house of the accused. So she was compelled to leave the matrimonial home. Thereafter she filed Annexure-I private complaint before the Judicial First Class Magistrate Court, Changanacherry which was forwarded to the police for investigation and on that basis Changanacherry police had registered Annexure-I First Information Report as Crime No.986/2011 of Changanacherry police station against the petitioners alleging offences under Section 498 A read with Section 34 of the Indian Penal Code and after the investigation, Annexure-II final report was filed and it was taken on file as C.C.No.513/2011 before the Judicial First Class Magistrate Court-I, Changanacherry. According to the petitioners, even if the entire allegations are accepted, there is no offence of 498 A is attracted as against the petitioners and conviction in such cases will be remote and the case to continue as against them will be only wastage of judicial time and so the petitioners have no other remedy except to approach this Court seeking the following relief:
So it is most humbly prayed that this Hon'ble court may be pleased to quash Annexure-II Final Report in C.C.No.513/2011 before the Judicial First Class Magistrate Court-I, Changanacherry, Kottyam District.
3. Heard the counsel for the petitioners, learned Public Prosecutor appearing for the second respondent and the learned counsel for the 1st respondent/de facto complainant.
4. The learned counsel for the petitioners submitted that though voluminous complaint has been filed by the de facto complainant, there is no allegation regarding cruelty which lead to an offence under Section 498 A of the Indian Penal Code has been made out. Silly and normal things that will happen in the house has been projected an act of cruelty, which in law will not amount to cruelty for attracting the offence under Section 498 A of the Indian Penal Code. So, according to the counsel for the petitioners, since there is no ingredient to attract the offence under Section 498 A has been made out, there is no possibility of conviction and it is only an abuse of process of the court to drive the petitioners to face trial. So, according to him, the petitioners are entitled to the relief of quashing of proceedings as against them.
5. On the other hand, the learned counsel for the first respondent argued that various allegations made in the complaint will go to show that it cannot be treated as a normal routine household work which was expected to be done by the housewife. Further, if these things were insisted for the purpose of harassing her for not meeting the demand for dowry which caused mental and physical harassment which made her living there impossible, then it will come under the explanation to the definition of cruelty under the said section. Further, they were pressurizing her to agree for divorce since her father was not amenable for the demand for further dowry claimed by the petitioners. Further, the allegations are sufficient to proceed against the accused persons and the particulars of cruelty are all matters of evidence and if the matter has to be decided on the basis of evidence, then the power under Section 482 of the Code cannot be invoked to quash the proceedings. So, according to the learned counsel, the petitioners are not entitled to get the relief and they will have to face trial in accordance with law.
6. The learned Public Prosecutor appearing for the second respondent supported the case of the counsel for the 1st respondent.
7. Before going to the facts of the case, it must be remembered that every cruelty as understood under law will not be sufficient to attract the offence under Section 498 A of the Indian Penal Code. Similarly, every quarrel which may ensue in the normal course of family life also will not be sufficient to come to the conclusion that there is cruelty as contemplated under Section 498 A of the Indian Penal Code. Similarly, mere demand for dowry or demand for money alone is not sufficient, but it must be followed by physical or mental harassment which the victim may anticipate harm to her life or limb and then only the offence under Section 498 A can be said to have been committed.
8. Section 498 A of the Indian Penal Code deals with offence of cruelty by husband or relatives of husband which reads as follows:
“498A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation:- For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”.
9. Explanation to the section defines cruelty. First part of the explanation deals with any willful conduct which is of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman and that deals with physical and mental cruelty and there is a direct attack on the person which results in cruelty as defined under the Act. The second part of the explanation deals with harassment so as to coerce her to meet the unlawful demand of any property or valuable security and that is being done on failure to meet such demand. So, unless these two things are independently proved or established or alleged and proved, it cannot be said that the offence under Section 498 A of the Indian Penal Code is attracted.
10. In the decision reported in Bhaskar Lal Sharma and Another v. Monica ( 2009 (10) SCC 604), it has been held that for proving the offence under Section 498 A, the complaint must be unlawful demand for dowry or any willful conduct on the part of the accused of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. The Hon'ble Supreme Court has relied on the decisions reported in Noorjahan v. State (2008 (11) SCC 55) and Sushil Kumar Sharma v. Union of India ( 2005 (6) SCC 281) regarding the same aspect.
11. Further, in the decision reported in Shakson Belthissor v. State of Kerala [2009 (3) KLT suppl. 412(SC)], the Hon'ble Supreme Court held that in order to attract an offence under Section 498 A of the Indian Penal Code, the ingredients to constitute an offence under explanation (a) or (b) of Section 498 A of the Indian Penal Code must be made out either in the First Information Report or in the charge sheet. If such ingredients are not there, then it cannot be said that there was a prima facie case or ground made out for proceeding against the accused and the case is liable to be quashed. Further, in the decision reported in Preeti Gupta v. State of Jharkhand [2010 (3) KLT SN 96 (C.No.101 (SC)], the Hon'ble Supreme Court has held that:
Tendency of implicating husband and all his immediate relations is also not uncommon. The courts must extremely careful and cautious in dealing with these complaints and must take a pragmatic realities into consideration.
This was the observation made by the Hon'ble Supreme Court in the case as misuse of Section 498 A of the Indian Penal Code by the de facto complainant.
12. In the decision reported in Suresh Kumar v. State of Kerala [2004 (3) KLT SN 40 (C.No.56)], this Court has held that:
Family flickering which cannot be taken seriously does not come within the ambit of Section 498 A as cruelty.
13. It is also settled law that power under Section 482 of the Code to quash the proceedings in a criminal matter can be invoked very sparingly and only if court is satisfied that even if the allegations in the complaint or the materials collected during investigation are admitted to be true,even then no offence under the section alleged is attracted, then only the court can quash the proceedings at the threshold of the prosecution itself.
If the court feels that there are allegations and the defence alleged by the accused are matters to be considered on the basis of evidence, then the court should be slow in quashing the proceedings by invoking the power under Section 482 of the Code. With this principle in mind, the case in hand has to be considered.
14. It is an admitted fact that the third accused married the de facto complainant on 7.1.2010. It is alleged in the complaint that at the time of betrothal, Rs.20 lakhs was demanded and it was entrusted and as per the request of the father of the petitioner, at that time 80 sovereigns of gold ornaments will have to be purchased by using Rs.10 lakhs out of Rs.20 lakhs given and according to the complainant, this was done by the second accused. Further allegation in the complaint was that even on the date of marriage itself, the first accused, who is the mother of the husband of the de facto complainant had obtained the gold ornaments and the de facto complainant was allowed to use only limited gold ornaments. Further, the allegation against petitioners 1,3 and 4 was that there was no servant maid in the house and the de facto complainant was made to do all the household works and she was even asked to wash the cloths including the undergarments of accused Nos.1, 4 and 5, who are the mother-in-law and sisters-in-law of the de facto complainant. Further, it was mentioned in the complaint itself that when she informed about the same to her father and he asked her to tell petitioners 1, 3 and 4 that she will not do the same and accordingly she came and informed the same and thereafter they did not ask her to do those works. The de facto complainant had no case that this continued thereafter as a harassment for non payment of dowry. It is also in a way admitted in the complaint itself that there was no servant maid in the house and household work was being done by the first accused/mother-in-law prior to the marriage of her son and when the complainant was brought to their house as daughter-in-law, she was asked to do the household works. Normally, this cannot be said to be an act of cruelty. But, if it is done with a view to harass and make to her work hard than a normal person without sharing the household works since she did not bring dowry or she did not accede for the demand for dowry and that harassment was such which makes it impossible for her to live in the house, then that may prima facie amount to cruelty. Such an allegation is not there in the complaint and even, according to the de facto complainant, when she resisted the same, they did not ask her to do the work and she had no case that on account of her resistance, she was further harassed or ill treated cruelly as defined under Section 498 A of the Indian Penal Code. Except this allegation, there is no much allegation of alleged cruelty met at the hands of accused 1, 4 and 5, who are petitioners 1,3 and 4 in this petition. Even the evidence collected by the investigating officer also did not show that there was any act of cruelty met by the complainant at the hands of petitioners 1, 3 and 4, who are accused 1, 4 and 5 in the complaint. The other allegations made are only general in nature and there is no specific act of cruelty has been alleged against these petitioners. So, under the circumstances, there is some force in the submission made by the counsel for the petitioners that allegations are not sufficient, even assuming that the entire allegations are admitted to be true, to attract the definition of cruelty as contemplated under Section 498 A of the Indian Penal Code and they are entitled to get the relief of quashing the case as against them. So even assuming that the allegations are true, in view of the discussions made above, it cannot be said that the allegations are sufficient to come to a prima facie conclusion that the offence punishable under Section 498 A of the Indian Penal Code is attracted as against the petitioners 1, 3 and 4, who are accused 1, 4 and 5 and further proceedings as against them is liable to be quashed.
15. As regards the second petitioner, the father of the husband is concerned, it was alleged in the complaint that he continued to demand for dowry and even in the meeting held between the father of the de facto complainant, their relatives and the first accused, he demanded more amount and when that was rejected, he demanded for divorce and started treating the petitioner cruelly made her to amenable for the request of divorce of the marriage with the third accused and, according to the de facto complainant, this continued till she left the house. So, under the circumstances, at this stage it cannot be said that there is no prima facie case made out to attract the offence under Section 498 A of the Indian Penal Code as against the first petitioner as there are allegations of demand for dowry and insisting to do certain things which the de facto complainant is not normally entitled to do as a refusal or meeting the demand for dowry as coming with the second part of the explanation to Section 498 A of the Indian Penal Code. So under the circumstances, it cannot be said that no prima facie or sufficient ground made out to proceed against the first petitioner so as to quash the proceedings as against him at this stage. So the second petitioner is not entitled to get the relief of quashing the complaint at this stage invoking the power under Section 498 A of the Indian Penal Code.
16. In view of the discussions made above, it can be safely concluded that the allegations are not sufficient to come to a prima facie conclusion that either there is a prima facie case or sufficient ground made out to proceed against accused 1, 4 and 5, who are petitioners 1, 3 and 4 in this petition so as to attract the offence under Section 498 A of the Indian Penal Code and no purpose will be served by proceeding with the case as against them as it will amount to abuse of process of court and so case against them is liable to be quashed. But, as against the second accused, who is the second petitioner herein is concerned, it cannot be said that there is no prima facie case made out and it is not a fit case to invoke Section 482 of the Code to quash the proceedings as against him at this stage. So the petition is allowed in part as follows:
Further proceedings as against petitioners 1, 3 and 4, who are accused 1, 4 and 5 in C.C.No.513/2011 (Crime No.986/2011 of Changanacherry police station) pending before the Judicial First Class Magistrate Court-I, Changanassery is quashed and the prayer for quashing the case as against the second petitioner, who is the second accused in that case is rejected.
Office is directed to communicate this order to the concerned court immediately.
cl /true copy/ Sd/-
K. RAMAKRISHNAN, JUDGE.
P.S to Judge